Barksdale v. Garrett , 64 Ala. 277 ( 1879 )

BRIOKELL, C. J.

The lands in which dower is claimed are not, by any averment of the bill, shown to have been the last dwelling-house of the husband, or the plantation connected therewith, possession of which the widow was entitled to retain until her dower was assigned; nor does it appear that, any time subsequent to the death of the husband, the widow ever had possession of them. The right to dower was consummated by the death of the husband; yet it did not confer a right of entry, nor the right to take the rents and profits, nor any right of ownership.— Weaver v. Crenshaw, 6 Ala. 873. Her right lay in action, and it was to compel the assignment to her of a third part of the lands in severalty. Scribner on Dower, 26.

It was early settled in England, and the doctrine was adopted in many of the States, that the widow’s remedy for the assignment of dower was not within the operation of the statute of limitations. — Ridgeway v. McAlpine, 31 Ala. 458. The reason is thus stated by Richardson, C. J., in Barnard v. Edwards, 4 N. H. 109 : “The statute applies only to actions, entries, and claims, founded on some previous seizin or possession of the lands, tenements, or hereditaments demanded, from which seizin or possession the time of limitation may be dated, and dower is not within the statute. For we have decided, that dower can not have a limitation dated from the seizin of the husband. — Moore v. Frost, 3 N. H. 126. And it is clear that a limitation of dower cannot be dated from the seizin or possession of the demandant, because she can not have either until dower has been assigned her.” "When the claim or rights of an alienee of the husband are involved, or of any one claiming under such alienee, the statute now requires, that proceedings for the assignment of dower shall be commenced within three years after the death of the husband. — Code of 1876, § 225Í. This is the only statute we have, which creates a bar from the lapse of time to the assignment of dower; and it must be observed that it only applies when there was an alienation by the husband, and is incapable of extension to a case like the present, where the alienation was after the death of the husband, by his personal representative, under a decree of the Court of Probate.

While the statute of limitations may not operate, proprio vigore, a bar to the assignment of dower, the right and claim may, in the judgment of a court of equity, from the lapse of time become stale; and acting upon its own peculiar principles, the court, upon considerations of public policy and general convenience, may refuse to intervene for the relief of a dowress, who has slept upon her rights. “Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence.” — Smith v. Clay, 3 Bro. C. C. 639, note. When twenty years are suffered to elapse from the consummation of the right of dower, in the absence of evidence which shows a recognition of the right by the parties whose estate is affected by it, without the assertion of the right by one of the appropriate remedies provided by law. a conclusive presumption of its extinguishment arises, not only in courts of equity, but in courts of law. — Ridgeway v. McAlpine, 31 Ala. 458; Owen v. Campbell, 32 Ala. 521; Harrison v. Heflin, 54 Ala. 552; McArthur v. Carrie, 32 Ala. 75; McCartney v. Bone, 41 Ala. 533. No such recognition is averred in the present bill, and the only excuses for the long delay in the assertion of the right, and acquiescence in a possession hostile to it, when analyzed, resolve themselves into a mere want of diligence on the part of the demandant. A proceeding instituted within proper time, in a court of competent jurisdiction, was neglected and abandoned; and more than ten years thereafter, when purchasers from the personal representative had passed into quiet possession, reposing on a title derived from a court of competent jurisdiction, she is quickened into the assertion of her rights. Under our decisions, supported, as we believe, by the highest considerations of public policy, twenty years acquiescence in the assertion of adverse rights, ripens into a positive bar. Of it the diligent can have no cause of complaint, and the negligent are silenced.

We find no error in the decree of the chancellor, and it must be affirmed.